In the
United States Court of Appeals
For the Seventh Circuit
No. 12‐2458
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
LARRY E. HODGE,
Defendant‐Appellant.
Appeal from the United States District Court for the
Southern District of Indiana, Evansville Division.
No. 3:11‐cr‐00007‐RLY‐WGH — Richard L. Young, Chief Judge.
ARGUED MAY 21, 2013 — DECIDED SEPTEMBER 6, 2013
Before RIPPLE, WILLIAMS, and TINDER, Circuit Judges.
TINDER, Circuit Judge. Larry Hodge pleaded guilty and was
sentenced to 1380 months’ imprisonment for multiple child
pornography offenses. During his sentencing hearing, he
offered testimony in mitigation from psychiatrist Dr. Louis
Cady. The district court discussed some of Cady’s findings in
explaining the sentence imposed, but neglected to mention
other findings, most notably Dr. Cady’s contentions that
2 No. 12‐2458
Hodge’s history of sexual and psychological abuse as a child
contributed to his decision to commit his offenses and that
Hodge was unlikely to reoffend. Hodge claims that the district
court’s alleged failures to address adequately these arguments
constitute procedural error. We disagree.
I.
In November 2010, police in Evansville, Indiana, received
a tip that Hodge had sent text messages containing sexually
explicit images of Hodge and a child. Under police question‐
ing, Hodge identified himself in the images and admitted to
engaging in sexual acts with the child. During a search of
Hodge’s home, police seized a computer and data storage
equipment that contained several disturbing images, including
depictions of the child performing oral sex on Hodge, sexually
explicit poses and acts involving the child and Hodge’s wife,
and sadistic abuse of the child involving ropes and a dog
collar. Hodge later admitted that the child in these images was
his niece, who was nine‐years‐old at the time of most of the
abuse.
In March 2011, Hodge was indicted on seven counts of
production of sexually explicit material involving a minor in
violation of 18 U.S.C. § 2251(a) and (e), two counts of conspir‐
acy to produce sexually explicit material involving a minor in
violation of 18 U.S.C. § 2251(a), and two counts of distribution
of sexually explicit material involving a minor in violation of
18 U.S.C. § 2252(a)(1). Hodge’s wife and another person who
received some of these images from Hodge were also indicted
on several charges. Hodge initially pleaded not guilty to these
charges, but then changed his plea to guilty in December 2011.
No. 12‐2458 3
The presentencing report correctly stated that the entire
range for Hodge’s advisory Guidelines sentence was 3720
months, i.e., 310 years. (His Guidelines total Offense Level was
49, for which the Sentencing Table recommends life imprison‐
ment. However, the maximum period of incarceration allowed
by any of the statutes under which he was convicted is 30
years. Therefore, his Guideline range, or in this case a point, is
determined by calculating the maximum allowable sentence on
each count if imposed consecutively. See U.S.S.G. § 5G1.1(a).)
Prior to sentencing, Hodge submitted to three psychiatric
evaluations performed by Dr. Cady. Hodge also filed a
sentencing memorandum, in which he argued for a downward
departure from the advisory Guidelines based on his accep‐
tance of responsibility, community service, past history as a
victim of childhood sexual abuse, and contention that he was
not likely to reoffend following completion of sex offender
counseling and treatment. The government also filed a sentenc‐
ing memorandum, in which it argued that Hodge’s sentences
for each count should run consecutively, based on the serious‐
ness of his offenses, the harm to the victim, and the need to
avoid sentencing disparities between similar offenders.
The district court held a sentencing hearing in May 2012.
Dr. Cady testified at this hearing, where he described Hodge’s
mental health issues that, according to Dr. Cady, culminated in
Hodge committing these offenses. Dr. Cady testified that
Hodge was the victim of sexual abuse as a child. According to
Dr. Cady, the trauma that Hodge suffered from this experi‐
ence, coupled with his early exposure to pornography and
extensive physical and emotional abuse, caused Hodge to
become prematurely sexualized. Hodge’s early sexualization
4 No. 12‐2458
led to impaired brain function and other serious problems as
an adult. Dr. Cady stated that Hodge’s childhood trauma and
consequent mental and physical health issues as an adult
helped form the basis of an addiction to pornography, obses‐
sive personality disorder, and other psycho‐biological disor‐
ders. These problems, in turn, contributed to his committing
the instant offenses.
In making this diagnosis, Dr. Cady relied in part on
Hodge’s statement to him that Hodge had not engaged in oral
sex with the victim. In fact, Dr. Cady did not view the photo‐
graphs that were the subject of the prosecution. Instead, he
relied on Hodge’s explanation to him of how the molestations
occurred and how the photographs were produced. During the
government’s cross‐examination of him, Dr. Cady stated that,
were he to learn that Hodge had not been truthful on this
point, “if it was a calculated, deliberate attempt to mislead me,
I would be concerned about it,” but that it would not necessar‐
ily affect Dr. Cady’s assessment of Hodge. After reviewing
photographic evidence, the district court concluded that
Hodge had in fact engaged in oral sex with the victim. Dr.
Cady also testified that part of the reason he felt Hodge to be
capable of rehabilitation is that his conversations with Hodge
led him to believe that various degrading depictions of the
child victim had been merely posed with the consent of the
child, and were not coerced events. Dr. Cady stated that if he
were to learn that force was used, he would be more concerned
about Hodge’s prospects for rehabilitation. The government
later introduced some of Hodge’s photographs for the judge’s
viewing which showed the child victim’s face being shoved
into the buttocks of an adult.
No. 12‐2458 5
Dr. Cady concluded that Hodge was unlikely to reoffend.
Dr. Cady based this conclusion in part on Hodge’s acceptance
of responsibility for his offenses, his separation from porno‐
graphic material while in detention, and the prospect that
Hodge could participate in a sex offender treatment group in
prison. Although Dr. Cady found that Hodge meets many, if
not all, of the criteria for pedophilic disorder, Dr. Cady
expressly stated that he did not diagnose Hodge with that
disorder.
In addition to Dr. Cady, Hodge called three family mem‐
bers as witnesses. These family members testified that Hodge
had positive relationships with them and was a hard worker.
The government called an Evansville police detective in
aggravation. This detective laid the foundation for admitting
copies of all of the images into evidence, including the ones
mentioned above. Following the testimony of these witnesses,
Hodge argued for a sentence of 180 months (fifteen years). The
government argued for a 1380‐month (115‐year) sentence.
After correctly calculating the advisory Guidelines range,
the district court discussed the considerations that it weighed
in determining Hodge’s sentence, paying particular attention
to the factors that 18 U.S.C. §3553(a) directs courts to consider.
The district court began its discussion of the §3553(a) factors
with the nature and circumstances of Hodge’s offenses. The
court emphasized the disturbing nature of the images, Hodge’s
betrayal of his niece’s trust, the likelihood that the victim
would “always … have [the offenses] in the back of her mind,”
and the permanence of images posted online, making them a
continuing source of harm to the victim.
6 No. 12‐2458
The court then turned to discussing Hodge’s history and
characteristics. In mitigation, the court noted that Hodge had
no prior criminal history, that he cooperated fully with the
investigation, and that he accepted responsibility for his
crimes. The court also discussed Dr. Cady’s report during the
history‐and‐characteristics portion of the sentencing hearing.
The court cited Dr. Cady’s report in stating that Hodge “has
reported abuse as a young child” and “addiction to pornogra‐
phy.” The district court returned to the subject of Dr. Cady’s
report later in the proceedings, stating that it disagreed with
Dr. Cady’s assessment of Hodge’s risk of reoffending and
noting that Hodge revealed to Dr. Cady that he had sexually
abused three other children prior to the instant offenses.
The court also discussed other §3553(a) factors, including
the need for the sentence imposed to reflect the seriousness of
the offenses, to promote respect for the law, to provide
deterrence, to protect the public from Hodge, and to provide
Hodge with correctional treatment. Following this discussion
of the §3553(a) factors, the district court sentenced Hodge to
1380 months’ (115 years’) imprisonment. Hodge filed this
appeal one month later.
II.
We review Hodge’s sentence for reasonableness under an
abuse‐of‐discretion standard. United States v. England, 604 F.3d
460, 464 (7th Cir. 2010). Our review involves two steps. First,
we determine whether the sentencing court committed
procedural error, and then we consider the substantive
reasonableness of the sentence. Id. A sentencing court’s failure
to consider the 18 U.S.C. §3553(a) factors constitutes proce‐
No. 12‐2458 7
dural error. United States v. Ramirez‐Mendoza, 683 F.3d 771, 774
(7th Cir. 2012). Because Hodge waived a challenge of the
substantive reasonableness of his below‐Guidelines sentence,
we consider only whether the district court committed proce‐
dural error.
To determine a defendant’s sentence, the district court
must, following the calculation of the applicable advisory
Guidelines range, make “an individualized assessment based
on the facts presented.” Gall v. United States, 552 U.S. 38, 50
(2007). “[A]fter giving both parties an opportunity to argue for
whatever sentence they deem appropriate, the district judge
should then consider all of the §3553(a) factors to determine
whether they support the sentence requested by a party.” Id.
at 49–50. These factors include, inter alia, “the nature and
circumstances of the offense and the history and characteristics
of the defendant,” 18 U.S.C. §3553(a)(1), as well as several
penological objectives: “to reflect the seriousness of the offense,
… promote respect for the law, and … provide just punish‐
ment for the offense; to afford adequate deterrence to criminal
conduct; to protect the public from further crimes of the
defendant; and to provide the defendant with needed educa‐
tional or vocational training, medical care, or other correctional
treatment,” §3553(a)(2). Although we treat the Guidelines as
advisory post‐Booker, the application of the §3553(a) factors is
mandatory. United States v. Miranda, 505 F.3d 785, 791 (7th Cir.
2007); see also United States v. Booker, 543 U.S. 220, 261–63
(2005).
In fashioning the appropriate sentence, the district court
“need not address every §3553(a) factor in checklist fashion,
explicitly articulating its conclusions regarding each one.”
8 No. 12‐2458
United States v. Shannon, 518 F.3d 494, 496 (7th Cir. 2008).
Instead, “the court may simply give an adequate statement of
reasons, consistent with §3553(a), for thinking the sentence it
selects is appropriate.” Id. Specifically, courts “are expected to
address principal, nonfrivolous arguments in mitigation,”
provided that factual foundations exist for these arguments.
United States v. Chapman, 694 F.3d 908, 913–14 (7th Cir. 2012).
Courts also must “adequately explain the chosen sentence to
allow for meaningful appellate review and to promote the
perception of fair sentencing.” Gall, 552 U.S. at 50.
We hold that the district court met this standard here,
giving appropriate consideration to how each of the relevant
§3553(a) sentencing factors applied in Hodge’s case. In deter‐
mining Hodge’s sentence, the district court paid particular
attention to the mitigating evidence that Dr. Cady presented.
Specifically, the court cited Dr. Cady’s report for the proposi‐
tions that Hodge suffers from pornography addiction and was
abused and exposed to pornography as a child, as previously
noted. These statements are among the more significant of Dr.
Cady’s conclusions. Essentially, the district court made one set
of inferences from Dr. Cady’s testimony, whereas Hodge
wanted the court to draw other inferences from it. This
difference does not constitute procedural error. The judge had
good reason to discount the psychiatrist’s assessment of
Hodge’s potential for rehabilitation: Hodge had filtered the
information about his conduct when being interviewed about
his treatment of the child.
Hodge faults the district court for not also commenting on
Dr. Cady’s opinion that Hodge’s premature sexualization had
lasting psycho‐biological effects or noting Dr. Cady’s views on
No. 12‐2458 9
Hodge’s potential for rehabilitation.1 The district court,
however, is not required to specifically address every discrete
point contained in a complex, nuanced psychological report.
See United States v. Collins, 640 F.3d 265, 271 (7th Cir. 2011)
(stating that courts need not “tick off every possible sentencing
factor or detail and discuss, separately, every nuance of every
argument”). The defendant’s history and characteristics is one
of many §3553(a) sentencing factors; Dr. Cady was one of four
witnesses to offer testimony in mitigation pertaining to
Hodge’s history and characteristics; and the specific conclu‐
sions from Dr. Cady’s report that Hodge now faults the district
court for not addressing are but a subset of the multiple points
in Dr. Cady’s report and testimony. The level of detail that
Hodge would like us to require sentencing courts to include in
their discussions of the §3553(a) factors is simply unrealistic.
Hodge directs our attention to three recent cases in which
we vacated defendants’ sentences and remanded for
resentencing, based on the district courts’ failures to address
adequately defendants’ arguments in mitigation. See United
States v. Robertson, 662 F.3d 871 (7th Cir. 2011); Miranda, 505
F.3d 785; United States v. Cunningham, 429 F.3d 673 (7th Cir.
2005). These cases, however, are distinguishable from the
instant matter.
1
Hodge also claims that the district court did not explain why its chosen
sentence serves the objective of protecting the public, as stated in
§3553(a)(2)(C). But the district court stated that, since Hodge’s 1380‐month
sentence in effect will keep him behind bars for the rest of his life, the court
“doubt[s] there’s much risk of further crimes” committed by Hodge.
10 No. 12‐2458
In Robertson, the defendants’ “principal argument at
sentencing was that they had rehabilitated themselves.”
Robertson, 662 F.3d at 879. The defendants had ample time to
undergo this self‐rehabilitation, as the government did not
charge them with their wire fraud offenses until almost ten
years had passed. Id. At sentencing, the defendants presented
“unusually strong” evidence of their rehabilitative efforts,
including their gainful employment, volunteer work, and lack
of other criminal conduct (aside from a reckless driving
conviction) during the intervening period. Id. Based on the
Robertsons’ remarkable rehabilitation during the period
between their criminal activity and their indictment, and the
fact that the defendants relied on this rehabilitation as their
central argument in mitigation, we found the sentencing
court’s minimal treatment of the argument to be insufficient.
Id. In the instant case, by contrast, Dr. Cady’s relatively brief
comments that Hodge claims the district court should have
specifically addressed during its discussion of the §3553(a)
factors were one of many arguments that Hodge made in
mitigation. In stark contrast to the Robertsons, Hodge’s
production and distribution of child pornography continued
right up to the time of his arrest in this case. He had not turned
away from this criminal activity long before detection.
In Miranda, the defendant presented psychiatric mitigation
evidence that was, simply put, of a different order of magni‐
tude than that in the instant case. In that case, a psychiatrist
diagnosed the defendant with schizoaffective disorder and
testified that the defendant suffered auditory‐command
hallucinations instructing him to rob a bank. Miranda, 505 F.3d
at 789. Hodge’s pornography addiction and status as a victim
No. 12‐2458 11
of childhood sexual and physical abuse, although certainly
troubling, are not in the same category as is the mitigation
evidence of extreme mental illness in Miranda.
Finally, in Cunningham, we noted two related problems
with the district court’s sentence determination. 429 F.3d 673
at 678. First, we faulted the district court in Cunningham for
giving “substantial weight” to the government’s “vague,
belated, [and] unsubstantiated” allegation that the defendant
failed to cooperate with law enforcement. Id. Second, we noted
that the district court failed to mention the defendant’s
psychiatric problems and substance abuse, which the defen‐
dant presented as a mitigating factor. Id. The defendant had a
“long history of psychiatric illness,” including a suicide
attempt, hospitalization for clinical depression, acute and
chronic anxiety, and compulsive disorder. Id. at 676. Taken
together, the district court’s undue attention to the allegation
that the defendant failed to cooperate and lack of attention to
the defendant’s mitigating evidence of severe psychiatric
disorders “undermin[ed] our confidence in the sentence.” Id.
at 678. Neither of our concerns with the district court’s behav‐
ior in Cunningham are present in the instant case. First, Hodge
does not argue that the factors that the district court considered
were inappropriate; his appeal is limited to the claim that the
court failed to adequately address his arguments in mitigation.
Second, as with Miranda, the psychiatric disorders present in
Cunningham are significantly more severe than those that Dr.
Cady indicated Hodge has suffered.
In stating this conclusion, we do not intend to minimize the
seriousness of pornography addiction and trauma stemming
from childhood sexual and physical abuse. It seems safe to
12 No. 12‐2458
assume, however, that many individuals that engage in
conduct similar to Hodge’s also suffer from psychological
dysfunctions. Well‐adjusted people, after all, do not tend to
produce child pornography. Offering mitigating evidence of
the type that Hodge presented (via Dr. Cady’s testimony)
seems akin to an individual convicted of multiple counts of
driving under the influence of alcohol telling the judge that he
suffers from alcohol addiction, without admitting the full
severity of the drinking habit. The addiction and the criminal
behavior certainly correspond. But it would be within the
judge’s discretion not to consider recognition of the addiction
to be mitigation unless there is a solid reason to conclude that
the addict is unlikely to recidivate. We could understand if, in
light of the offensive conduct, the judge in this hypothetical
situation were to view such information as not particularly
noteworthy for sentencing purposes. The same is true here.
Given the shaded version of the offense conduct that Hodge
provided Dr. Cady, the prospects for Hodge’s rehabilitation
may not have appeared as rosy to the judge as they did to the
psychiatrist.
Hodge’s favored approach would turn sentencing courts’
discussions of the §3553(a) factors into checklist exercises,
depriving judges of their discretion in sifting through large
amounts of evidence to determine which items are most
relevant. The Supreme Court has cautioned against such a
checklist approach, reminding reviewing courts that “[t]he
sentencing judge is in a superior position to find facts and
judge their import under §3553(a).” Gall, 552 U.S. at 51 (inter‐
nal quotation marks omitted). Here, the district court deter‐
mined that the most noteworthy aspects of Dr. Cady’s testi‐
No. 12‐2458 13
mony for mitigation purposes were his statements that Hodge
suffered from pornography addiction, childhood sexual abuse,
and childhood exposure to pornography. That the district court
did not also discuss Dr. Cady’s testimony concerning the
effects of Hodge’s premature sexualization or his views of
Hodge’s prospects for rehabilitation does not rise to the level
of procedural error.
Accordingly, the district court’s sentence is AFFIRMED.